United Workers' Union

[2022] FWC 155

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.512—Right of entry

United Workers' Union

(RE2021/1260)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 28 JANUARY 2022

Application for a right of entry permit for Cheryle Ann Mills – permit previously issued - permit never received – order revoking missing permit – permit reissued.

The United Workers' Union (UWU) applied under s.512 of the Fair Work Act 2009 (Act) for the issue of a right of entry permit to its official, Ms Cheryle Ann Mills. The Commission subsequently issued Ms Mills a right of entry permit which will expire on 20 December 2024.

Ms Mills’s permit is one of the 37 missing entry permits referred to in decision [2022] FWC 123. As indicated in that decision, in order for Ms Mills to hold a valid entry permit, the missing permit must be revoked and a permit must be reissued. In order to issue a permit to Ms Mills, I need to be satisfied that she is a fit and proper person to hold a permit under the Act taking into account the permit qualification matters. The relevant statutory considerations set out in [2022] FWC 123 are adopted here and need not be repeated.

Consideration

In support of its application UWU filed declarations by Ms Mills and Mr Paul Richardson, Director – Finance, Governance and Administration (the Declarations).

Permit qualification matters – s.513(1)(a), (b), (c), (d), (e) and (f)

According to the Declarations:

· Ms Mills has received appropriate training about the rights and responsibilities of a permit holder by undertaking a course of training on the subject of a federal right of entry conducted on 11 November 2021 (s.513(1)(a) of the Act));[1]

· Ms Mills has never been convicted of an offence against an industrial law (s.513(1)(b) of the Act);[2]

· Ms Mills has never been convicted of an offence against a law of the Commonwealth, State, Territory or a foreign country, involving conduct described in s.513(1)(c) of the Act;[3]

· Neither Ms Mills nor any other person has been ordered to pay a penalty under this Act or any other industrial law in relation to action taken by her (s.513(1)(d) of the Act);[4]

· Ms Mills has not had any entry permit issued under Part 3-4 of the Act or a similar law of the Commonwealth revoked, suspended or had imposed conditions on any such permit (s.513(1)(e) of the Act);[5]

· Ms Mills has not had cancelled, suspended or imposed conditions on any right of entry permit for industrial or occupational health and safety purposes that Ms Mills held under a State or Territory industrial law or a State or Territory occupational health and safety law (s.513(1)(f)(i) of the Act);[6] and

· Ms Mills has not been disqualified from exercising or applying for a right of entry permit for industrial or occupational health and safety purposes under a State or Territory industrial law or a State or Territory occupational health and safety law (s.513(1)(f)(ii) of the Act).[7]

I accept that the information disclosed in the Declarations concerning these matters is accurate and correct. These matters weigh in favour of a conclusion that Ms Mills is a fit and proper person to hold a right of entry permit.

Permit qualification matters – s.513(1)(g)

There are no other matters of which I am aware that I consider relevant to the determination of whether Ms Mills is a fit and proper person to hold an entry permit.

Conclusion

Pursuant to s.603 of the Act, the entry permit formerly issued to Ms Mills by decision of the delegate is revoked with effect from the date of this decision. A revocation order is separately issued in PR737825.

Taking in account the permit qualification matters, for the reasons earlier stated I am satisfied that Ms Mills is a fit and proper person to hold an entry permit.

A permit will be reissued to Ms Mills separately.

DEPUTY PRESIDENT

[1] Form F42, Declaration by proposed permit holder dated 15 November 2021 at (a) and UWU Certificate of Attendance dated 11 November 2021

[2] Ibid at (b)

[3] Ibid at (c)

[4] Ibid at (d)

[5] Ibid at (e)

[6] Ibid at (f)

[7] Ibid at (g)

Printed by authority of the Commonwealth Government Printer

The case before the court involved Cheryle Ann Mills, who applied for a right of entry permit. The permit had initially been issued but never received, and subsequently, an order revoking the missing permit was made. Mills then applied for the permit to be reissued. The legal issues at hand were whether the initial permit was indeed lost and if a new permit could be issued under the circumstances.

The court considered whether the initial permit had been lost and whether there were any procedural errors in the revocation order. It was established that the permit had not been received by Mills, and there was no evidence to suggest that it had been delivered. The court also examined whether the revocation order was valid and if the subsequent reissuance of the permit was justified. Given that the original permit had not been received, the court found no procedural flaws in the revocation order and determined that the reissuance of the permit was appropriate.

The court concluded that the initial permit had been lost and the revocation order was valid. Mills' application for the permit to be reissued was successful, as the circumstances warranted a new permit. The court's reasoning was based on the evidence presented regarding the non-receipt of the initial permit and the procedural correctness of the revocation order. The court's decision was to allow Mills' application for a new right of entry permit.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established